More than 1,000 misdemeanor and petty misdemeanor cases have been dismissed on Oahu and dozens more have either been dismissed or challenged on neighbor islands because of procedural issues with how prosecutors initiated those cases.

House Bill 1541 aims to fix shortcomings identified in a Hawaii Supreme Court ruling in December. It cleared the House earlier this session and was passed unanimously by the Senate on Monday. It now goes to Gov. David Ige for his consideration and, if becomes law, the Honolulu prosecutor’s office plans to refile many of the cases.

“Frankly, it’s somewhat of a chaotic situation in our courts,” Honolulu Prosecuting Attorney Steve Alm told the Senate Judiciary Committee last week.

The problem stems from the way prosecutors have been filing criminal complaints in court. Typically, a deputy prosecutor signs the bottom of the written complaint, which provides a brief summary of any alleged violations. The written complaint ensures an individual appears in court, or else they could be found in contempt.

Alm told lawmakers that’s the process the office has followed for decades.

But the high court said in its ruling that isn’t enough to satisfy a state law that requires a “complainant” to sign written complaints. Instead, those documents should be “subscribed under oath by the complainant or made by declaration in lieu of an affidavit.”

Honolulu Prosecuting Attorney Steve Alm introduced a bill that seeks to clarify issues of who should sign criminal complaints. Lawmakers approved that measure, House Bill 1541, on Monday. Cory Lum/Civil Beat/2021

What exactly that means is up for debate. Some judges have interpreted that to mean prosecutors must obtain signatures from victims of crimes, county prosecutors said in legislative testimony.

HB 1541, introduced at the request of the prosecutor’s office, makes clear that criminal complaints can be signed by prosecutors.

Since the ruling in December, 1,015 cases on Oahu have been dismissed. Most were misdemeanors, petty misdemeanors and minor offenses, according to Matt Dvonch, a spokesman for the Honolulu prosecutor’s office.

Alm said in written testimony that those cases include instances of drunken driving, sex assault, assault, restraining order violations and household abuse cases.

Prosecutors aren’t aware of any felony cases being dismissed as a result of the Supreme Court ruling, Dvonch said.

Many of the cases were dismissed without prejudice, meaning prosecutors can refile charges. The office plans to do that if HB 1541 becomes law.

The Public Defender’s Office opposed the measure. Deputy Public Defender Jon Ikenaga said the prosecutors could still pursue all those cases. They just need to follow procedures in line with the court’s ruling. That could include obtaining signatures from crime victims.

“The prosecutors just need to comply with it,” Ikenaga said. “They don’t seem to want to.”

Once the bill is officially transmitted to the governor’s office, Ige will have 10 days to sign the measure or it will become law without his signature.

His office said HB 1541, like all measures that clear the Legislature, must be reviewed by state departments and pass a legal review.

The state Supreme Court ruling stems from a 2017 abuse case on the Big Island. In that case, defendant Corey Thompson asked a court to dismiss his misdemeanor charges because prosecutors did not include an affidavit with the complaint in that case. The complaint included just a single page signed by a deputy prosecutor.

A District Court judge sided with Thompson. In 2020, the Intermediate Court of Appeals instead ruled that a prosecutor’s signature is all that is needed to initiate a criminal case.

In December, the state Supreme Court unanimously reversed the ICA opinion.

The ruling created trouble for state judges in interpreting who should be required to sign criminal complaints.

“What the judges are ruling is all over the map,” Alm told lawmakers during a committee hearing.

Hawaii State Supreme Court Chief Justice Mark Recktenwald flanked by associate justices hear oral arguments on a reapportionment case.
A Hawaii Supreme Court ruling in December has confounded state judges, prosecutors say. Cory Lum/Civil Beat/2022

All four county prosecutors testified in favor of HB 1541. All raised concerns that the Thompson ruling would require victims of crimes to sign written complaints.

Maui County Prosecutor Andrew Martin said in written testimony that the Thompson ruling could create a “severe chilling effect” for criminal prosecution in the state.

“Abuse victims would also be forced to sign complaints against their abuser before going home to them,” Martin wrote. “Child sexual assault victims would be required to allege criminal acts under oath against an offender who could reside in the same home.”

Although police and prosecutors may obtain signed statements from crime victims, Alm told lawmakers that following up with victims to sign a written complaint afterward could be difficult.

HB 1541 also had support from Mothers Against Drunk Driving, police departments on Oahu and the Big Island, the Hawaii State Coalition Against Domestic Violence, the Domestic Violence Action Center and the Retail Merchants of Hawaii.

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